Daniel James Wyjad

The appellants purchased two parcels of land in an unorganized township in the District of Parry Sound and sought a declaration that Trussler Road, which crossed respondents' private property, was a public highway.

The appellants claimed the road qualified as a public highway under section 261 of the Municipal Act based on colonization road status, statute labour, or dedication and acceptance.

The motion judge dismissed the claims on all grounds.

The Court of Appeal upheld the dismissal, finding no reversible error in the motion judge's conclusion that the appellants failed to establish dedication and acceptance on the evidence.

The court found the use of the road was consistent with neighbourly tolerance rather than public dedication.

This decision addresses the issue of costs following a five-day trial concerning defaulted mortgages and construction costs.

The plaintiffs, Barrie Leasing Services Inc. and James Shirley, were found to be the successful parties, having been awarded judgment for outstanding mortgage and construction costs.

The court determined that the plaintiffs were entitled to partial indemnity costs, rejecting their claim for substantial indemnity costs and the defendants' argument that their Rule 49 offer should apply.

The court found that the trial was necessary to resolve live issues, including the distribution of funds held in trust.

The applicants sought an injunction to stay power of sale proceedings, a declaration that a Notice of Sale was invalid, and the release of trust funds to redeem a mortgage.

The respondent opposed, arguing the application should be stayed due to unpaid costs and that the trust funds were subject to a prior court order.

The court declined to stay the application for costs.

It ruled that the trust funds must remain in trust pending the judgment in a separate consolidated action concerning other mortgages.

The court found the respondent's Notice of Sale invalid because it was issued in breach of a forbearance agreement, but clarified that the respondent was free to issue a new, compliant notice.

The request to stay the power of sale proceedings was otherwise dismissed.

The applicants sought to enforce registered easements over a shared access road (Brewers Close) on the respondents' property, seeking injunctive relief to restore the road to its original condition after the respondents unilaterally relocated a portion of it.

The respondents argued the easements were invalid due to vagueness and, alternatively, that the relocation did not substantially impair the applicants' use.

The court found the easements were not invalid due to vagueness, considering extrinsic evidence, but could not declare them fully valid without tracing their roots.

Crucially, the court determined that the relocation did not substantially impair the applicants' reasonable use of the easement for its granted purpose.

Consequently, both the application and the respondents' counter-application for a declaration of invalidity were dismissed.

This decision addresses the costs arising from the plaintiffs' unsuccessful motion for summary judgment and the dismissal of the balance of their main action concerning the public highway status of Trussler Road.

The defendants, as the wholly successful parties, sought partial indemnity costs.

The court, applying principles from the Courts of Justice Act and Rules of Civil Procedure, awarded the defendants costs for both the motion and the main action, adjusting the hourly rate for counsel to align with previous decisions in the case.

The appellants appealed a decision establishing the boundary line between their property and the respondent's property.

The application judge determined that a fence line, rather than a surveyor's measured line, constituted the proper boundary based on surveying principles and historical evidence.

The appellants raised four grounds of appeal, contending the application judge misinterpreted surveyor field notes, failed to properly consider a surveyor's plan, failed to apply proper legal principles, and based the boundary location on facts not in evidence.

The Court of Appeal found no palpable and overriding errors and upheld the lower court decision.

This decision addresses costs following a successful cross-application by the respondent, Gordon Robert Anderson, in a land dispute.

The respondent filed costs submissions, while the applicants, Karen Jean Weaver and William Bryce Weaver, did not.

The court applied Rule 49.10(1) of the Rules of Civil Procedure, which entitles a party to partial indemnity costs to the date of an offer to settle and substantial indemnity costs thereafter if they obtain a judgment as favourable as their offer.

Considering factors under Rule 57.01(1), including the complexity of the proceeding, the importance of the issues, and the value of an expert report, the court awarded the respondent $48,654.30 in fees plus applicable taxes, and $17,706.80 in disbursements, to be paid by the applicants within 90 days.

This case involved a boundary dispute between adjacent property owners on Shawanaga Lake, concerning a piece of land known as "the Point." The applicants sought a declaration of ownership based on a surveyed "White line," while the cross-applicant (respondent) argued the boundary should follow an older fence line, seeking a declaration of ownership or adverse possession.

The court found that the original surveyor erred by not accepting the fence line as the boundary, contrary to established surveying principles and common law.

While acknowledging the historical error, the court ultimately declared the boundary to be the westerly limit of Part 1, Plan 42R-12887, which was consistent with the cross-applicant's long-standing occupation and made the disputed Part 1 his property.

The Land Registry was ordered to amend its records accordingly, and a caution registered by the cross-applicant was vacated.

The defendants brought a motion for partial summary judgment to dismiss the plaintiffs' claim for a declaration that their property access was an "access road" or "common road" under the Road Access Act.

The plaintiffs cross-moved for summary judgment, asserting the access was a public highway or, alternatively, an access/common road.

The court applied summary judgment principles, finding no genuine issue requiring a trial regarding the "spur road" not meeting the Act's definitions.

Evidence indicated the spur road had not been used by motor vehicles for over 30 years, was overgrown, and lacked a railway crossing mechanism, thus not serving as a motor vehicle access route.

The defendants' motion was granted, dismissing the plaintiffs' claim under the Act.

The plaintiffs' cross-motion regarding the public highway claim was adjourned, and the alternative claim regarding access/common road was dismissed.

A dispute arose from a homemade commercial farm lease containing inconsistent provisions regarding the lease term.

The tenants sought declarations regarding the lease term, access to the property, and injunctions relating to interference with their farming operations, while the landlords counter‑applied for a declaration that the lease had ended or was properly terminated for cause.

The court applied principles of contractual interpretation, including the dominant purpose of the agreement and consideration of surrounding circumstances, to resolve ambiguity between a clause stating a two‑year term and another describing the lease as a “one year lease.” The court concluded that the lease term ran from December 1, 2011 to November 1, 2013.

However, the tenants’ deliberate non‑payment of rent for several months constituted a breach entitling the landlords to terminate the lease, and the tenants were ordered to pay arrears and vacate the premises within a defined period.

Homeowners brought motions to amend their statement of defence and counterclaim to particularize defective installation of a radiant in‑floor heating system and to obtain summary judgment based on findings from the Licence Appeal Tribunal under the Ontario New Home Warranties Act.

The court held the amendment was not a new cause of action but merely a particularization of negligence already pleaded concerning the concrete foundation and construction defects.

Applying issue estoppel principles, the court found the Tribunal’s determination that the heating system constituted a major structural defect was a final judicial decision between the same parties and resolved the same issue.

Summary judgment was therefore granted on liability for breach of contract relating to the heating system, but damages were left for determination at trial.

Following a family law motion in which the moving party sought leave to add a third party, conduct questioning, and amend the application to advance constructive and equitable trust claims, the court addressed the issue of costs.

The responding party was generally successful in resisting the motion.

The court found no factors warranting elevated or substantial indemnity costs.

Costs were therefore fixed on a standard basis.

The moving party was ordered to pay a lump sum costs award to the successful party.

The plaintiffs sought declarations that a trail crossing several private properties constituted a public highway, or alternatively an access road protected under the Road Access Act.

The court examined historical evidence, municipal expenditures on maintenance, and longstanding public use to determine the legal status of the roadway.

It held that the road became a public highway through implied dedication and municipal acceptance, applying the principle of “once a highway, always a highway.” The court rejected the plaintiffs’ claim that the road had a 66‑foot width and instead determined the historical roadway width was 1.4 metres.

Barriers placed by neighbouring landowners preventing passage were ordered removed.

The applicant brought a motion seeking relief from an earlier court order permitting the municipality to demolish a building if the applicant failed to complete construction by a specified deadline.

The prior order required the building to be ready for final occupancy by August 30, 2012, failing which a stay of demolition would be lifted.

The court found that the applicant had failed to comply with the deadline and had a long history of delays and missed construction timelines despite multiple court-managed extensions.

Applying the doctrines of issue estoppel, collateral attack, and abuse of process, the court held that the prior order should not be revisited.

The motion was dismissed and the earlier demolition-related order was upheld.

Costs decision following a motion in an estates dispute concerning an objection to an application for a certificate of appointment as estate trustee.

The responding party had been successful on the underlying motion and sought full indemnity costs.

The court considered the applicants’ earlier offer to withdraw the objection without costs and the proportionality of the costs claimed relative to the overall litigation.

Finding that the issues argued on the motion were limited largely to costs and that the respondent’s claimed motion costs were disproportionate, the court ordered the respondent to pay the applicants partial costs of the motion.

In an estate dispute involving a notice of objection to probate and related litigation steps, the respondents brought a motion seeking various relief including costs.

The litigation stalled after earlier directions orders requiring documentary production, potential discovery, and appointment of an estate trustee during litigation, none of which were meaningfully completed.

The applicants later attempted to withdraw the matter without costs after concluding the litigation was not economically viable.

The court held that the respondents were the successful party but limited their recoverable costs to the period prior to the applicants’ offer to withdraw without costs.

Costs were awarded on a partial indemnity basis with a reduction reflecting both parties’ conduct and failure to efficiently advance the litigation.